Court of Appeal deems SPF Regulations ‘ultra vires’ |23 August 2022

Orders Minister for Finance to address legal anomalies

A civil appeal case heard by the Court of Appeal during its August session has resulted in an interesting legal matter being raised, with the court ordering a copy of its “decision to be served on the Minister of Finance, responsible for the Seychelles Pension Act, to address the legal anomalies raised in the decision”.

The appeal which concerns the interpretation of the provisions of the Seychelles Pension Fund Act 2005 saw a dispute as to whether the spouse or common-law partner should be deemed the beneficiary of a deceased person’s pension benefits at the time of death. 

Upon considering the facts of the case and grounds for appeal, the appeal Court strongly pronounced that SPF (Benefits) Regulations  made under Section 68 of Act contain specific provisions “that may be ultra vires the parent legislation”, meaning the Minister for Finance acted beyond its authority in drafting the “piecemeal” regulations.

“In our view, the addition of Regulations relating to conditions that allow beneficiaries to qualify for benefits, not themselves circumscribed by the Act, might be problematic. Section 68(a) delegates to the minister the power to regulate how benefits are paid under the Act. Yet the Regulations provide for gratuities not provided for by the Act and set conditions for ‘maintenance’ and ‘residency’, among other matters.”

“It is clear that the Act is not ‘umbrella legislation’ and that the minister is not delegated power to fill in the gaps. It may also be contended that the Regulations exclude a large class of persons (spouses living abroad) through the addition of qualifying conditions for ‘maintenance’ and ‘residency’. It must be repeated that the objects of the Act are to maintain the surviving family of the contributor – not rule out beneficiaries who are not resident in Seychelles,” Justice of Appeal Mathilda Twomey stated.

Despite recognising that the decision to grant the common-law partner the benefits is “plainly wrong” and overlooks the provisions of Regulation 26 applicable to spouses and entitlement to benefits, court ruled that until an administrative action is properly brought the Regulations must therefore be presumed to be valid.

As such, the appeal was dismissed, and the decision of the Supreme Court and SPF to grant the pension to the deceased’s common-law partner upheld.

As per the facts of the case, the deceased, a 57-year-old male, had two relationships during his lifetime, one with his wife, and another with a work companion. Upon his death, his beneficiaries under the Act would be entitled to a pre-retirement death gratuity and other statutory benefits, as he had contributed to the SPF for over forty years, well above the qualifying period.

In the original case, which saw the spouse and daughter of the deceased against the SPF and its manager, the spouse claimed that despite having moved to England for some years prior to her husband’s death, she did so to support their daughter who was undergoing her studies there.

Through evidence produced to court, she testified that they had maintained their relationship as husband and wife, both contributing to the maintenance of the family, through their joint account. Over the years, he visited them often in the UK, and they would travel on family holidays together. According to her, her husband lived in the matrimonial house, with both of them paying off the utility bills.

Numerous witnesses, including her daughter, corroborated her testimony that she had had a subsisting relationship with the deceased until his death.

Furthermore, she produced to court her husband’s Will, drafted in the UK but proved and registered in Seychelles, in which he left to his wife and daughter his estate, inclusive of properties in the UK.

On the contrary, the common-law partner applied for the SPF for a surviving spouse’s pension, on the grounds that she had cohabited with and travelled with him to several countries, even accompanying him on medical trips for treatment in both 2013 and 2015, after he was diagnosed with cancer.

When the common-law partner applied for benefits from the SPF, the latter  enquired whether she qualified. Upon interviewing three witnesses and considering competing applications, the manager of the institution at the time decided to award her the pension benefits under the Act.

As a result, the spouse and daughter filed a plaint to the Supreme Court, who dismissed the plaint after finding that the spouse had not resided and cohabited with her husband in Seychelles for the qualifying period of five years, prior to his death. 

Court also stated that although the Pension Board could have waived the residency condition, no application had been made for such by his spouse.

Ultimately the court found that his spouse “was not the spouse of the deceased for the purpose of the Act”. Instead, it found that the common-law partner had satisfactorily established her cohabitation with the deceased, for the qualifying period under the Act. Since the court had ruled in favour of his partner, the issue of his daughter being an heir entitled to benefit from her father’s contributions to the Pension Fund “did not arise for deliberation”.

Based on the decision of the Supreme Court, the wife and daughter appealed on seven grounds, some of which were dismissed by the Justices of Appeal.

Justice Samia Andre shared a similar view to Justice Twomey, although President of the Court of Appeal Anthony Fernando gave the dissenting opinion that the spouse should have been entitled to the late husband’s pension.

The SPF is currently undertaking a full comprehensive review of the SPF Act and its Regulations. The aim is to modernise and address all anomalies with regard to SPF laws.

Laura Pillay