CONSTITUTIONAL COURT OF SOUTH AFRICA
Phumla Ruth Patricia Ngewu and Another v Post Office Retirement Fund and Others
CCT 117/11 Date of hearing: 7 November 2013 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 7 November 2013 at 10h00 the Constitutional Court will hear an urgent application for the amendment of an order of the Court because the Legislature has failed to act within the time limit stipulated in the order
In Ngewu and Another v Post Office Retirement Fund and Others [2013] ZACC 4 (Ngewu) this Court declared provisions of the Post Office Act unconstitutional. The Act did not afford divorced spouses the same rights and advantages granted to divorced spouses who fell under the Pensions Funds Act and Government Employees Pension Law. This differentiation was found to violate the right to equality as enshrined in section 9 of the Constitution.
At the hearing, the legal representatives of the parties indicated that they were able to reach an agreement and submitted a proposed order to the Court. Judgment was delivered on 7 March 2013. The declaration of invalidity was suspended. Parliament was given eight months to cure the defect, failing which a section of the Government Employees Pension Law would be read into the Post Office Act.
On 4 November 2013 the Minister of Communications filed an urgent application seeking an extension of the period of suspension for another six months. The reason given for Parliament’s failure to cure the defect within the initial eight-month period is that the previous Minister failed to present the required statutory amendment to Cabinet.
The Minister argues that it would be problematic for the read-in provisions to take effect because the Parliamentary process will have to start again. Should the reading-in occur,
this Court will have intervened into an area of exclusive legislative power and so intruded on the separation of powers. Mrs Ngewu opposes the application, because the delay in curing the constitutional defect has not been adequately explained and any further delay will cause prejudice. No prejudice will be suffered if the reading-in order is allowed to take effect.
