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High Court dismisses and sets aside a Pensions Funds Adjudicator’s determination in a matter involving Bokamoso

29 June 2022 The Bokamoso Retirement Fund

The Bokamoso Retirement Fund (Bokamoso) welcomes the judgement of Judge Crutchfield of the High Court, Gauteng Local Division that dismissed and set aside an erroneous determination of the Pensions Funds Adjudicator (PFA).

The PFA, Muvhango Lukhaimane had previously ordered Bokamoso – which is administered by the Akani Retirement Fund Administrators (Akani) – to pay back an amount deducted from Ntokozo Maseko’s (former Akani employee) retirement fund withdrawal benefit in respect of a study loan and further urged the Financial Sector Conduct Authority (FSCA) to investigate Akani for unlawful conduct.

The Managing Director of Akani, Zamani Letjane said, “We welcome the judgement of the High Court for exonerating both Akani and Bokamoso and proving – without a shadow of a doubt – that the decisions the Bokamoso Board took were in line with the rules of the Fund. This is not the first time the PFA has been found wanting by the Courts and their contradictory determinations are a cause for concern.”

The PFA went to the extent of publishing their erroneous determination in the press and causing reputational harm to both Bokamoso and Akani.

Below is the background to the matter:

Mr. Ntokozo George Maseko was employed by Akani Retirement Fund Administrators on 1 April 2016 as a Benefits Administrator, and he resigned on 22 February 2021. Prior to his resignation, the parties entered into several study loan agreements as early January 2018, to the extent that Akani would pay for tuition fees for each academic year with a proviso that the employee will remain within the employ of Akani for 60 months after the duration of each year of study, failing which the loan amount shall be immediately payable.

On 22 February 2021, immediately upon his resignation, Mr. Maseko entered into an agreement and gave permission for Akani to deduct the outstanding amount of R52 252.57. Akani incorrectly calculated the outstanding amount, the correct amount deducted was R60 879.70. Mr Maseko’s study loan was for enrollment abroad and it was a dollar denominated loan and that’s why Akani incorrectly calculated the amount.

On 02 July 2021, Mr. Maseko referred the matter to the Pension Fund Adjudicator (PFA) concerning the payment of the withdrawal benefit.

Mr. Maseko’s complaint to the PFA was about the amount of money deducted (quantum), in that Akani deducted R60 879.70, instead of R52 252.57, which he agreed to. On 13 August 2021, Akani provided the PFA with the correct break down of the loan amount. On 08 September 2021, the PFA dismissed Mr. Maseko’s complaint based on the documentary evidence by Akani.

However, on 30 September 2021, the PFA issued a determination against Bokamoso ignoring two aspects of the complaint that:

- The complainant acknowledged that there is an agreement between himself and Akani to make such a deduction
- And that the issue in dispute is the quantum and not the principles in section 30D of the Pension Fund Act

We filed an application to the High Court and we received the attached order in favour of Bokamoso.

 

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