Gay rights have been given a boost following a ground-breaking decision by Pension Funds Adjudicator Professor John Murphy in which he ordered a pension fund to pay out retirement death benefits to a Johannesburg man.
The determination may have far-reaching implications for gays and their rights to the death benefits from their partners' retirement funds.
A complaint was lodged with Murphy's office by Rory Martin who was unhappy about being refused the lump sum death benefit and spousal pension from his late partner's pension fund.
Sue Myrdal, who investigated the case for Murphy's office said the rules of the Beka Provident Fund regarding the spouse's pension, and in particular the definition of "marriage" unfairly discriminated against same sex relationships.
Such discrimination is prohibited under the Constitution.
The rules of the fund only allowed for cohabiting heterosexual couples to be considered "married" but not cohabiting same sex couples.
"The stability and permanence of same sex relationships is no different from that of married couples and both types of union deserve respect and protection," she said.
Myrdal said objective criteria may well need to be developed to determine what "as if married" means.
"In the absence thereof we are left with the rather vague understanding that 'as if married' incorporates mutual dependency and a shared and common household, but also means more than this, in terms of a long-term, committed, emotional and sexual bond," she said.
Murphy ordered the fund to amend its rules to include in the definition of marriage any "union of two adults, whether of the same or opposite sex, in respect of whom the board is satisfied that the parties cohabited as if married".