According to the Pension Funds Act, if a fund is dissatisfied with a determination, the fund has six weeks from receiving it to file an appeal with the High Court. Lukhaimane’s determination in this matter is dated April 26, 2016.
Mr B was employed by Akani Retirement Fund Administrators between October 2010 and November 2015 as a project manager. He belonged to the Bokamoso Retirement Fund, administered by Akani. According to the determination, he was dismissed after admitting to misconduct.
In December 2015, Mr B received an IRP3 from the South African Revenue Service. It stated that tax of R96 049 had been deducted from his withdrawal payment of R558 608. But the lump sum, which came to R462 558 after tax, was not paid into his bank account.
In February 2016, the adjudicator received Mr B’s complaint that he had not been paid his benefit. She gave Akani and Bokamoso a month to respond.
A month later, the determination says, a follow-up letter was sent to Akani and Bokamoso affording them a further opportunity to respond.
In response, Akani provided the adjudicator’s office with an unsigned letter from Mr B, stating that he had withdrawn the complaint. The letter referred to compact discs and curtains that had gone missing. The items were replaced and returned respectively, it said, and Akani could deduct R10 000 from Mr B’s fund credit in lieu of losses it had suffered.
Akani and Bokamoso were given further extensions, to April 15 last year, to provide evidence that they were justified in withholding Mr B’s benefit. No response was received.
A further submission from Mr B said that he was instructed by Akani to write the letter to the adjudicator withdrawing his complaint, but he did not sign it or withdraw the complaint, “as he knew he would not be paid a benefit”, the determination says.
Section 37 of the Pension Funds Act states that an employer can ask a pension fund to deduct damages from the pension payout of an employee member if the member has committed “theft, fraud, dishonesty or misconduct that involved dishonesty”, with financial loss to the employer.
However, the employee must either have admitted his or her liability in writing or have been tried and found guilty by a court.
The adjudicator ruled that Akani and the Bokamoso fund could not rely on the unsigned letter as an admission of liability. Such an admission must be signed by the member and must contain the following:
- An admission by the member that he or she caused the loss;
- A statement as to the amount of the loss; and
- A statement that the loss was caused via theft, fraud or misconduct that involved dishonesty.
Lukhaimane ruled that Mr B be paid his withdrawal benefit, less any lawful deductions, plus interest at the rate of nine percent a year from December 31, 2015, within three weeks of the date of the determination.
Mr B is at his wits’ end and has repeatedly contacted the adjudicator’s office and the Financial Services Board (FSB).
In September last year, Bokamoso made a partial payment of R130 000 into his account. In January this year, Mr B submitted a second complaint to the adjudicator.
When Personal Finance intervened on his behalf, it initially received no response from Bokamoso and Akani.
Then, a response from Akani’s lawyers, Joubert Scholtz Attorneys, which also refers to Ms N’s case (see “Another employee not paid out in full, below”), stated:
“The subject determination/s have been discussed with the FSB as per the applicable request in terms of the adjudicator’s determination;
“Seeing as the matters seem to remain unresolved between all parties involved, our client has instructed our office to object thereto and apply for a review of the determinations made by the adjudicator; and
“We confirm that both Akani, in their capacity as the fund’s administrators, as well as the board of Bokamoso, vehemently opposes the findings by the adjudicator, more specifically, the adjudicator’s interpretation of section 37 of the Pension Funds Act.”
The letter invited Personal Finance to view all the files in connection with Mr B’s case and, on finalisation of the review application, it said Akani would like the opportunity to “make use of your forum to ensure that the correct facts, as well as background to events, be publicised”.
Personal Finance subsequently sent questions asking Akani and Bokamoso what the basis of its argument was in contesting the adjudicator’s determinations and why it hadn’t appealed Mr B’s determination within the allotted six-week period as stipulated in the Pension Funds Act.
No response had been received by the deadline.
ANOTHER EMPLOYEE NOT PAID OUT IN FULL
Mr B’s case is not an isolated case involving a former employee of Akani Retirement Fund Administrators.
In February, Personal Finance reported on a determination by the Pension Funds Adjudicator in favour of Ms N, who was employed in an administrative capacity at Akani.
Ms N, according to the determination, made an error in authorising a death benefit. She was dismissed, and the amount she cost Akani was deducted from her pension payout.
In her determination, Muvhango Lukhaimane, the adjudicator, said Ms N’s error did not constitute “theft, fraud, dishonesty or misconduct that involved dishonesty”, nor was there proof of these, either by way of a signed admission of liability or a court conviction.
She ordered Ms N to be paid out in full, and referred Akani and the Bokamoso Retirement Fund to the Registrar of Pension Funds for investigation.
WHAT ACTION THE REGULATOR IS TAKING
Personal Finance asked the Financial Services Board what action it was taking regarding the referral by the Pension Funds Adjudicator of Akani Retirement Fund Administrators and the Bokamoso Retirement Fund to the Registrar of Pension Funds.
Corlia Buitendag, the head of enforcement and surveillance in the pensions department, replied that the registrar had noted the complaints received and the determinations issued by the adjudicator, as well as the adjudicator’s concerns expressed in those determinations.
“While mindful of drawing adverse inferences from individual complaints, the registrar recognises that complaints against a pension fund or administrator may be indicative of more serious governance breaches that may be systemic. Therefore, the number of complaints against a fund or administrator is one of the factors that feeds into the registrar’s risk-based supervisory model, which the registrar uses to determine the level of scrutiny required in respect of pension funds and administrators registered under the Pension Funds Act.”
Regarding complaints pertaining to funds administered by Akani Retirement Fund Administrators, Buitendag says the registrar has noted with concern the allegations against Akani and has already met with Akani’s director to discuss the issues raised in the adjudicator’s determinations and get a better understanding as to why there appeared to be several complaints to the adjudicator involving funds that Akani administers.
“Several questions were raised during this meeting and further documentation was requested from Akani.
“The registrar’s office has now received a response from Akani and is currently considering these latest submissions in order to determine whether or not further regulatory action is required, which could include an on-site visit on the funds and/or the administrator, or a request for an inspection in terms of the Inspection of Financial Institutions Act,” Buitendag says.
ENFORCEMENT OF DETERMINATIONS
Corlia Buitendag, the head of enforcement and surveillance in the pensions department at the Financial Services Board, says section 30 of the Pension Funds Act provides a mechanism for the enforcement of determinations by the Pension Funds Adjudicator.
“Provided that no application contemplated in section 30P of the Act was lodged and the determination is filed with the clerk of the court having jurisdiction, the determination is considered to be a civil judgment of the court, and the clerk of the court can issue a warrant of execution against property and can be executed by the sheriff of the court.”
In other words, Mr B (and anyone in the same position) may take his determination to the court in whose jurisdiction the pension fund falls, and the clerk of the court is obliged to take action against the fund.
In a talk at this week’s Pension Lawyers Association conference in Cape Town, the adjudicator, Muvhango Lukhaimane, said law clinics (run by some of the universities) had been helpful in this regard.