Tshifhiwa Shembry Mutsila has been embroiled in a legal battle with the Municipal Gratuity Fund for 10 years.
After a decade-long legal battle, a widow will have to wait at least another three months to find out whether she is entitled to her late husband’s full R1.6 million pension.
Tshifhiwa Shembry Mutsila has been in and out of court since 2015, after another woman, Dipuo Masete, claimed she was also married to the deceased under customary law and financially dependent on him.
Husband’s death sparks battle over R1.6 million pension
Mutsila married Takalani Emmanuel Mutsila in December 2003 in a civil marriage. The couple had five children.
Takalani, who worked for the Ba Phalaborwa Municipality in Limpopo, died in December 2012 in a workplace accident.
His dependants were entitled to R1 614 434.86 under Section 37C of the Pension Funds Act.
However, Masete lodged a claim with the Municipal Gratuity Fund (MGF), saying she and her two children had been named beneficiaries in the deceased’s life policy and that he made regular payments into her bank account.
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Although Mutsila disputed the claim, the MGF board in April 2014 decided to split the death benefit -awarding Mutsila and her five children 47.5%, and Masete and her two children 52.5%.
A private investigator hired by Mutsila later found that Masete was married to Malema Joseph Mphafudi under customary law and that he was the biological father of her two children.
This revelation sparked a custody battle brought by Mphafudi against Masete in the Limpopo High Court.
Masete did not dispute these findings.
Adjudicator’s ruling
In May 2014, Mutsila challenged the MGF’s decision with the Pension Funds Adjudicator.
While the adjudicator invited both the fund and Masete to respond, the MGF requested a delay until the custody matter was finalised.
The adjudicator subsequently found that the MGF had not properly identified the deceased’s dependants and set aside the decision in September 2014.
The fund was instructed to conduct a proper investigation and make an equitable distribution of the death benefit within three weeks of the custody case’s conclusion.
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The MGF, however, approached the Gauteng High Court in Pretoria in April 2015 to overturn the adjudicator’s decision.
That application was dismissed in June 2018, and its appeal was rejected in November 2021.
The high court found that the fund had distributed the pension before properly identifying dependants.
SCA reversal
Despite the earlier losses, the MGF was granted a special appeal to the Supreme Court of Appeal (SCA).
It argued that the adjudicator lacked jurisdiction and that Mutsila should have lodged her complaint directly with the fund under section 30A(1) of the Pension Funds Act before approaching the adjudicator.
The MGF also contended it had not been heard before the adjudicator made a determination.
In July 2023, the SCA ruled in favour of the fund, finding the adjudicator had not given it the opportunity to respond to Mutsila’s complaint.
The court also highlighted that Masete’s factual dependency had not been challenged.
ConCourt judgment
Mutsila then escalated the matter to the Constitutional Court (ConCourt), where the appeal was heard in November 2024.
Former MGF CEO Marthinus Jacobsohn argued before the apex court that the finding that Masete and her two children had been supported by the deceased was “both rational and sound”.
Judge Leona Theron, however, pointed out that the fund did not know about Masete’s marriage to Mphafudi at the time of its decision and had failed to conduct a proper investigation within the 12-month period from the death of a member.
“The fund was not aware that he was the biological father of her children, that he was still alive, and that he could support the children financially.
“The only fact mentioned in the fund’s founding affidavit filed in the high court and annexures attached thereto is that Ms Masete declared dependency on the deceased in the amount of R2 000.
“There is no evidence that the fund carried out any investigations to determine for itself or confirm this declared dependency.
“There is no allegation in the documents attached by the fund to its founding affidavit to the effect that the deceased either maintained Ms Masete’s children, paid for their school fees and clothing, or provided them with shelter,” the judgment, delivered on 8 August 2025, reads.
Theron also pointed out that Mutsila had not demonstrated exceptional circumstances warranting the ConCourt to replace the fund’s decision with a new order.
She, therefore, ruled that the case be sent back to the MGF for a new investigation as the dispute stemmed from their “flawed decision”.
“It is important to note that the outcome of the custody proceedings between Ms Masete and Mr Mphafudi have no bearing on the order of this court,” Theron added.
The ConCourt upheld Mutsila’s appeal and ordered the MGF to make a fresh determination within three months of the judgment.
The fund was also ordered to pay Mutsila’s legal costs.
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