Judge rules PFA's determinations enforceable as a judgement

Muvhango Lukhaimane, Pension Funds Adjudicator.

The Pension Funds Adjudicator (PFA) has teeth and can bite - her determinations have the same status as a civil court judgment.

This was made abundantly clear by a judge of the North Gauteng High Court recently when he reaffirmed that while the office of the PFA is not a court of law, the Pension Funds Act grants the same powers that a court of law has.

Dewrance AJ was commenting in the contempt of court matter, Linkie Tshwarano Mantsho v Managing Director of the Municipal Employees Pension Fund (MEPF) and Others (Case Number 37226/2014).

The MEPF had failed to provide Ms Mantsho with her benefit statements for 2005 to 2013. She also noticed a cancelled withdrawal claim which she says she was unaware of. She lodged a complaint with the PFA to compel the MEPF to provide her with the 2005 to 2013 benefit statements as well as information regarding the cancelled withdrawal claim.

In her determination, the PFA, Ms Muvhango Lukhaimane, ordered the MEPF, among other things, to provide Ms Mantsho with her latest benefit statement as well as with information regarding the aborted 2007 withdrawal claim; to pay her withdrawal benefit; and to provide her with a detailed breakdown of the withdrawal benefits.

When none of this appeared to have been done by the MEPF, Ms Mantsho approached the High Court of South Africa, Gauteng Division for relief in the form of a contempt of court finding.

The High Court dismissed the application on the basis that the PFA is not a court and, therefore, the MEPF cannot be in contempt of court.

However, Dewrance AJ added that while the PFA is not a court of law, the Pension Funds Act grants the PFA the same powers that a court of law has.

The determinations by the PFA enjoy the same status of a civil court judgment and are as legally enforceable as a court judgment.

Dewrance AJ said the Pension Funds Adjudicator is a creature of statute which is appointed in terms of the provisions of the Pension Funds Act.

The PFA “shall investigate any complaint and make an order which any court of law may make”.

“After completing the investigation, the Pension Funds Adjudicator must send a statement containing his or her determination and the reasons therefor, signed by him or her, to all the parties concerned as well as to the clerk or the registrar of the court which would have had jurisdiction had the matter been heard by a court.

“The determination may be enforced in terms of the provisions of sections 30O of the Pension Funds Act,” said Dewrance AJ.

Senior Counsel’s opinion sought by the PFA on this judgment confirmed that while a party may not be held in contempt for failure to act in accordance with the PFA’s determination, this did not affect the effectiveness of the PFA.

According to the PFA’s Senior Counsel’s opinion: “A party that is aggrieved by the PFA determination has a right to challenge the determination in the High Court under section 30P of the PFA.

“If that party should be unsuccessful in the challenge, and fail to give effect to the PFA’s determination, that party would then be in contempt of the High Court that dismissed the application and susceptible to the sanctions that are available in that regard (assuming there is no further appeal to a higher court).

“The enforcement mechanisms provided by section 30O of the Pension Funds Act are quite adequate to give teeth to the PFA’s determinations.

“If the party against whom a determination is made then attempts to subvert enforcement of the determination in any way, there are other legal remedies that the complainant may pursue, including approaching the High Court for declaratory orders and interdicts.

“In the final analysis, the PFA’s powers and effectiveness remain undisturbed by a finding that failure to comply with its determinations does not trigger contempt of court.”