- A retired teacher with R5.5 million invested in a life annuity faced losing her home despite having substantial funds invested with the same bank.
- The court acknowledged the unfairness of the situation but found that the law did not permit the relief sought.
- The case left me questioning whether the law always delivers justice when morality and legal rules collide.
The case I just lost was one I felt I had to win, even though I knew the law did not favour me. I relied on logic and morality, hoping the court would resonate with them.
I prepared the attorney on record and the client for the possibility that, although the situation was unfair and unjust, the law would ultimately favour their oppressors.
I remember walking out of court afterwards. I did not want to speak. Daniel Semenya told me that I had fought hard and that the client was happy her case had been heard. But I was defeated. For the first time, I did not want photographs. My eyes are naturally red, but after court, they were scarlet.
A lifetime of work at risk
A mother came to us. She had worked as a teacher for about 40 years. She had accumulated a pension worth R5.5 million.
She was convinced by a company to purchase a life annuity. She invested her R5.5 million into that annuity. The investment was held with the same bank that financed her home.
She lives in a house with an outstanding bond of about R700,000. She needed access to her invested money to settle the home loan. Yet the same bank wanted to take her house while treating her as though she had no money invested with them.
The income she receives from the life annuity is about R15,000 a month. The house requires roughly R25,000 a month. She cannot afford both her living expenses and the home.
Logic, morality and the law
We approached the court seeking an order compelling the bank to settle the home loan from the money she had invested.
Logic suggested that she had sufficient money available within the same institution that financed her home. Morality suggested that the bank should not allow a client who entrusted it with so much of her retirement savings to become homeless.
The matter turned on a section of the Pension Funds Act consisting of only a few lines. The case had the potential to set an important precedent. The court granted urgency in our favour. However, we ultimately lost the case.
The court expressed sympathy for the applicant's circumstances and acknowledged the moral obligations that might arise. Nevertheless, it found that, despite the prejudice suffered by the applicant, it could not grant the relief sought.
When the law and justice part ways
I felt terrible. This is a woman who worked hard her entire life so that she could enjoy her golden years. She should be spending her retirement in comfort, enjoying time with her family and following the day's headlines. Instead, her own money cannot help her.
The court saw our case. The court heard our case. The court understood our case. Yet it was bound by the black-and-white provisions of an Act of Parliament. I had every reason to carry a heavy heart. In many ways, I felt as though I died twice inside.
I saw this elderly woman as my mother. She is around the age my late mother would have been. She is Black. She worked hard. She trusted financial advisers and bankers. Now she is forced to spend her retirement years fighting legal battles.
The human cost
What troubled me most was the possibility that, within months, her millions could become meaningless while a home she had paid for over 18 years slips away. Her own money cannot save her home.
That reality forced me to confront a difficult question. At times, should judges be guided by more than the strict wording of legislation? Should they look beyond the coded language of statutes when faced with circumstances that cry out for relief?
These are not easy questions. They are questions that lawyers, judges and society continue to wrestle with.
The cases that stay with you
I suppose that, as a lawyer, there will be cases you lose even when you believe you should win. You learn that sometimes you must make peace with dying a little inside the courtroom after fighting as hard as you can.
I really wanted to win this one. I felt I had to win this one. But the court decided otherwise.
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