FST case summary involving De Lange and Pension Fund Adjudicator & others
By Shamaa Sheik
The following matter was heard in the Financial Services Tribunal on 5 September 2019:
- Gert Lodewikus De Lange (1st Applicant) and Pension Fund Adjudicator (1st Respondent); Absa Group Pension Fund (2nd Respondent); ACA Employee Benefits (Pty) Ltd (3rd Respondent) – case number: PFA47/2019
Fast facts
- Pension Funds Act – s 30M – access to his pension – termination of employment
- Financial Sector Regulation Act – s 230 – application for reconsideration of Pension Fund Adjudicator decision – submission of new evidence
Summary
Background
The applicant in this matter sought a reconsideration of a decision by the Pension Fund Adjudicator (the PFA) in terms of s 230 of the Financial Sector Regulation Act 9 of 2017 (the FSR Act).
The applicant, a member of ABSA Group Pension Fund (the Fund), was employed by Absa Consultants & Actuaries (Pty) Ltd (ACA) which is a participating employer within the Fund. ACA later changed its name to ACA Employee Benefits (Pty) Ltd where the applicant is currently employed.
The applicant had enquired as to whether he could access his pension fund benefit whilst still in the employ of ACA. The PFA found that applicant could not be allowed to access his pension as he remained in service with ACA. The PFA further explained that the rules of the fund did not permit a member to access the pension benefit while that member remains in service.
However, the applicant contended that he ceased to be an employee of ACA when Sanlam had acquired ACA’s Shares adding that he was provided with new terms of employment. He also stated that his date of engagement was changed and that he did not carry over his leave days. Sanlam responded that there was never a break in the applicant’s service.
Submission of new documents into evidence
The applicant then proceeded to submit new documents in a bid to show the PFA that his service with ACA had been terminated and thus on the basis of the termination, he was entitled to access his pension fund.
The matter was then brought before the Tribunal for consideration of the following new documents:
- a new employment contract provided to him by Sanlam;
- an amended contracted provided to other employees (different to his);
- a notice of termination of service from ABSA;
- a nomination of beneficiary form;
- and a long service recognition award.
The Tribunal set out the requirements for the hearing of further evidence on appeal as follows:
- there should be a reasonably sufficient explanation why the evidence which it is sought to be led was not led at the trial;
- there should be a clear likelihood of the truth of the evidence;
- the evidence should be materially relevant to the outcome of the trial.
The issue before the Tribunal
The issue for determination was whether the applicant would be entitled to access his pension fund based on the new information that was brought before the Tribunal.
The Tribunal also noted that there was new evidence that was not before the PFA when the determination was issued. Hence, the Tribunal had to also determine whether the introduction of new evidence would have had an impact on the PFA’s determination.
Findings
The Tribunal stated that the new evidence presented by the applicant was relevant and material to this matter. The Tribunal was cognisant of the fact that in some instances the applicant had only received some of the new evidence after the matter was dealt with by the PFA.
The Tribunal stated that if the applicant succeeded in proving that his employment was terminated and he was offered new employment, then considering the case law on the matter, he would be entitled to access his pension fund.
The Tribunal found that the evidence that the applicant had relied on to demonstrate that his services with ACA was terminated, were not presented before the PFA when the determination was issued as the applicant was not in possession of those documents at the time. Having considered these pertinent factors, the Tribunal found as follows:
- the PFA should consider the new evidence submitted by the applicant as these documents may have a bearing on the determination;
- the PFA should consider why the applicant was offered a new employment contract if he remained in service; and
- it should be considered whether there was a transfer in terms of s 197 of the Labour Relations Act.
Order
The Tribunal admitted the new evidence presented by the applicant and the determination of the PFA was set aside.
The matter was remitted back to the PFA for re-consideration. No order as to costs was made.
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The law
- Financial Sector Regulation Act 9 of 2017 – ss 230; 234
- Labour Relations Act 66 of 1995 – s 197
- Pension Funds Act 24 of 1956 – s 30M
Cases referenced
- South Africa Airways SOC v BDFM Publishers (Pty) Ltd and others 2016(2) SA 561 (GJ)
- Tofa v The State [2015] ZASCA 26 (20 March 2015) (case number 20133/14) at paras 4 and 5
- Telkom SA Ltd and Others v Blom and Others [2003] 3 All SA 130 (SCA); [also reported at 2005 (5) SA 532 (SCA)]