IN THE HIGH COURT OF ESWATINI
Held at Mbabane Cases No.: 903/2018
In the matter between
LINDIWE THANDIWE SHABALALA Applicant
JABU MLOTSHWA 1st Respondent
PUBLIC SERVICE PENSION FUND 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
Neutral Citation: Lindiwe Thandiwe Shabalala v Jabu Mlotshwa & 2 Others (903/2018)  SZHC 145 ( 6th July 2018
Coram: Hlophe J.
For the Applicant: Mr M. Mabuza
For the 1st Respondent: Mr T. Mavuso
For the 2nd Respondent: Mr K.J. Motsa
Dates Heard: 22nd June 2018
Date Judgement Handed Down: 6th July 2018
Application proceedings –Retirement Funds Act –Basis of entitlement to a share from such funds –Whether all spouses in the case of a polygamous setting entitled to a share –Proceedings about staying the sharing of proceeds pending the determination of applicant’s marital status towards the Deceased –Whether that necessitates the determination of applicant’s status before excluding her from sharing in the deceased’s retirement funds –Papers reveal it is not necessary to determine this question –Question of sharing based on dependency and exercise of a discretion by the Fund and not necessarily on marriage –Application accordingly dismissed –Each party to bear its own costs.
 The Applicant instituted these proceedings under a certificate of urgency seeking the following prayers:-
1.1. Dispensing with the normal time limits, manner of service, forms and procedure and hearing the matter as one of urgency.
1.2. Condoning Applicant’s non-compliance with the Rules of this Honourable Court.
1.3. That a rule nisi operating with immediate effect do hereby issue in terms of Prayers 4, 5 and 6 returnable on a date to be determined by this Honourable Court.
1.4. That pending finalization of this application, distribution of spousal benefit by the 2nd Respondent for the late Dumsane Ernest Maseko be and is hereby stayed pending determination by the Edladleni Royal Kraal at Emdlasome area into the true state of affairs in the marriages of the Applicant and the 1st Respondent to the late Dumsane Ernest Maseko.
1.5. That the First Respondent be ordered to stop presenting the marriage certificate in issue to other organizations or institutions where spousal benefits are concerned pending determination of this application.
1.6. Costs of suit in the event proceedings are opposed.
1.7. Granting applicant further and /or alternative relief.
 The basis for the applicant’s case is that she and the First Respondent were married to the late Ernest Dumsane Maseko during his life time. These marriages were allegedly in terms of Swazi Law and Custom. Whereas she claims to have been the first such wife, the first Respondent was allegedly the second such wife. The applicant contends that in the marriage between her and the deceased there was born one child. The applicant and the first Respondent were, like the deceased during his lifetime, soldiers, in the employ of the Umbutfo Swaziland Defence Force.
 Following the death of the deceased, there was called the deceased’s next of kin by the Second Respondent to deliberate and possibly decide on how it was to distribute the retirement funds due from the deceased’s terminal benefits. According to the Applicant it arose during the meeting how many wives the deceased had during his lifetime. Owing to the fact that it had happened during the deceased’s lifetime that he and her late husband had a dispute or misunderstanding or quarrel which had resulted in them having had to live separately from one another, with her having had to leave the matrimonial home, the second Respondent, she claims, ruled that she was not a wife, with the First Respondent being ruled to be the only one who was a wife to the deceased. The upshot of this ruling was that the one ruled to be the wife was going to be paid spousal benefits or was to share from the deceased’s terminal benefits whereas she, the applicant, was not going to be paid anything because she had allegedly been ruled not to be a wife to the deceased. She said that a distribution account which excluded her was thereafter prepared.
 Upon her being dissatisfied with the said ruling, she went to the Umphakatsi of her late husband’s area called Emdlasome, to collect a letter confirming she was indeed a wife to the deceased. Her said Umphakatsi, although confirming knowing her, had refused to issue her such a letter. Wanting to prove her marital status, she had reported a dispute to the aforesaid Umphakatsi for a ruling which she believed was going to change the sharing formular of the retirement funds benefit. In order to ensure that she was not left out of the distribution of the spousal benefits arising from her late husband’s terminal benefits whilst awaiting the determination of the dispute by the Umphakatsi or the Royal Kraal, she instituted the current proceedings for an order in the form of a rule nisi interdicting the payment of the spousal benefits to her rival, the first Respondent; whilst the outcome of the determination of her dispute was awaited. She sought another order stopping the first Respondent from presenting her marriage certificate to other organizations or institution where spousal benefits were to be paid out. This was also sought pending the determination of her dispute on her marital status from the Umphakatsi.
 As proof that she was indeed a wife to the late, she annexed to her papers an affidavit by a certain Josephinah Maseko who she claimed was there when she was being traditionally married to the deceased together with another one by one Futhi Maseko, who is said to have had a role to play during the said marriage.
 The first and second respondents filed their individual papers, each opposing the application. What is significant is that none of them denied that the applicant was married to the deceased during his lifetime and perhaps even that the applicant was the first one to be so married. They both also agreed that the second Respondent did not base its decision to exclude the applicant from benefiting on the marriage or otherwise of each one of the two of them to the deceased. They were agreed the decision by the second Respondent was based on the question of the dependency of each one of the beneficiaries of the deceased on him during his lifetime together with the exercise of a direction by the second Respondent. It was submitted that these considerations were the ones that the second Respondent was in law entitled to use in determining matters of spousal benefits from retirement funds in their possession.
 Having made itself clear what the main arrears for consideration in determining whether or not the applicant was entitled to a spousal share from the retirement funds held by the second Respondent was, the First Respondent, acting through people she referred to as members of the Maseko Family, went to extreme lengths accusing the applicant of having left the matrimonial homestead with the deceased and embarked on a love relationship with a certain Simelane man of Mhlambanyatsi area. Not even an intervention by her biological father, who was a police officer, could dissuade her from her decision to desert her marital home. She was, according to the first Respondent and her Maseko relatives not entitled to a share from the spousal benefits in question on that ground. It having been made clear what considerations are taken into account by the Second Respondent in determining who benefits from retirement funds in its possession, I took these additional facts by the First Respondent to be irrelevant for purposes of determining this matter.
 It became clear during the hearing of the matter that the relief sought by the applicant was predicated on an understanding that the second respondent had excluded the applicant from getting a share from the retirement funds in its possession on the basis that she was not a wife hence her need to have that issue determined by the Emdlasome Umphakatsi before the issue of sharing from the spousal portion of the retirement funds could be finalized.
 It however became clear from the respondent’s case in the answering affidavits that was not the case. The reality according to the Respondents counsel was that whether or not the decision from the said Umphakatsi would favour the Applicant’s version, which was in any event not being disputed, such would not change the fact that such was not a consideration by the second respondent because it had not decided the matter on whether any of the two wives of the deceased was not a wife. It had decided the matter on who was entitled to share from the spousal benefit arising from the Retirement Funds on the question of dependency of such a spouse on the deceased before his death together with the exercise of a discretion. In this regard the Court was referred to the case of Public Service Pension Fund V Nkululeko Mayisela And Another, Civil Appeal Case No.53/2010 as well as the South African one of Mashazi V African Products Retirement Benefit Provident Fund And Another 2003(1) SA 629 (W).
 To underscore the point, this Court was referred to an excerpt from the above judgements as captured in the Mayisela case which had itself taken an excerpt from the Mashozi judgement, expressed in the following words;
“Section 37 C of the Act was intended to serve a social function. It was enacted to protect dependency, even over the clear wishes of the deceased. This section specifically restricts freedom of testation in order that no dependents are left without support. Section 37 (C) (1) specifically excludes the benefits from the assets in the estate of a member. Section 37 (C) enjoins the trustees of the pension fund to exercise an equitable discretion, taking into account a number of factors. The fund is expressly not bound by a will, nor is it bound by the nomination form. The contents of the nomination form are there merely as a guide to the trustees in the exercise of their discretion. Hence the declaration in the nomination form which I quoted above. (See Sithole V ICS Provident Fund and Another 2000 (4) BPLR 430 and Kipling V Unilevers SA Pension Fund (1) 2001(8) BPLR 2368 at 2373). The fact that the distribution, approved by the First Respondent, is not strictly according to the nomination form, cannot found a ground for review.
I consider these remarks are also equally applicable in Swaziland.”
 Mr Motsa for the Second Respondent raised the same argument as Mr Mavuso on this point. I asked from each one of the Respondent’s Counsels why the Second Respondent, in a case where both of the deceased’s wife were working as soldiers during his time of death, and none was therefore strictly speaking dependent on the deceased, it had chosen one over the other, and if that was not an arbitrary exercise of discretion so as to exclude the applicant, apparently because she had left the deceased at their matrimonial home than that the First Respondent was dependent on the deceased; both Counsel were adamant that was not a matter for this Court to decide in these proceedings given that the reliefs sought were not challenging the decision of the Second Respondent except that the operation of such a decision be stayed pending a decision on the marital status of the applicant and the first Respondent. In other words, no review of the latter’s decision was being sought. Besides, it was clarified that in exercise of the remedies availed her by the Act, the applicant had internally appealed the decision of the second Respondent which awaited determination.
 Accepting that the applicant did not realistically challenge the Second Respondent’s decision on that basis before this Court and noting that the applicant’s case was not that the Second Respondent could not have realistically decided the matter in the manner it did, I am convinced that it is not a question, I should concern myself with in these proceedings. I am emboldened in my decision by the fact that the Applicant has appealed the decision of the Pension Fund internally, which called for it to be given space to deal with the matter. It presently suffices that on the face of it the decision of the Second Respondent had nothing to do with whether or not the Applicant was a wife to the deceased which was in any how not being disputed.
 The other prayer of the Applicant sought to have the First Respondent interdicted from presenting her marriage certificate to other organizations or institutions where spousal benefits are due; I guess to the deceased’s spouses. The reality is that no basis whatsoever has been alleged why the First Respondent, who it is not denied was married to the deceased, has to be prevented from presenting her certificates to institutions where spousal benefits she is entitled to, are to be paid. The opposite of this should also be true in my view for the Applicant herself where she is entitled in law to receive such benefits; that is to say unless otherwise clarified, I do not understand why anyone of them should be prevented from filing their certificate when they are entitled to do so in law. I therefore cannot agree with this prayer which in my view lacks merit.
 Consequently, and for the foregoing considerations, I have come to the conclusion that Applicant’s application cannot succeed and that it should be dismissed. Owing to the peculiar facts of the matter, and the matter being a family dispute which pits close relatives against each other, I will order that each party pays its own costs.