Pension Board slammed by PFA for acting on unapproved rule

A complainant who attempted to claim a disability benefit found out that she had not been registered with a pension fund although provident fund contributions were deducted from her salary.

Ms MR Mochabane(complainant) was employed by Agriligna (Pty) Ltd (third respondent) from 15 September 2010 to 20 May 2013. In May 2013 the complainant was declared disabled and became entitled to a disability benefit.

When she approached the third respondent for claim forms in order to submit a disability benefit claim form to the Chemical Industries National Provident Fund (first respondent), the third respondent said that it did not have claim forms. She then contacted NBC Fund Administration Services (Pty) Ltd (second respondent)and was advised that it had no record of her in its system.

The complainant submitted further that the third respondent did not pay over the monthly provident fund contributions that were deducted from her salary and she did not receive benefit statements or any policy documents from it.

In a response submitted on behalf of the first respondent, the second respondent confirmed that the third respondent was not a participating employer in the first respondent and as a result, the complainant was not a member of the first respondent.

The second respondent concluded that the complaint against the first respondent should be dismissed as the first respondent had no record of contributions in respect of the complainant and the third respondent.

On 28 January 2014, a response comprising several e-mail messages was received from the third respondent. It may be summarised as follows:-

• On 16 July 2012 Victor Chaane, a Divisional Manager of the second respondent, sent an agreement to be signed to the third respondent for its participation in the first respondent. He requested a colleague (Siza Dlikilili) to provide the third respondent with an electronic data template in order for it to provide its members’ data and also to provide the third respondent with the banking details of the first respondent.

• On 27 July 2012 the third respondent sent the signed agreement to the second respondent and requested the electronic data template.

• On 19 February 2013 the third respondent confirmed in an e-mail sent to the second respondent that it deducted contributions since the signing of the agreement but still awaited the banking details of the first respondent.

• On 8 November 2013 the third respondent confirmed that the complainant was declared medically disabled. Contributions were deducted from the salary and benefits should be paid in terms of the rules of the first respondent. However it did not receive the electronic data template and banking details. Therefore, contributions could not be paid over.

The third respondent said it was prepared to refund the complainant all her contributions if the second respondent failed to respond.

The third respondent also attached a copy of the agreement signed by it, as well as a letter dated 19 February 2013, requesting the banking details of the first respondent, in support of its response.

In her determination Ms Lukhaimane said the rules of a fund were supreme and binding on its officials, members, shareholders and beneficiaries and anyone so claiming from the fund.

She said the third respondent received an agreement from the second respondent to participate in the first respondent. The agreement was signed by the third respondent on 27 July 2012 and sent to the second respondent on the same date.

The agreement provided that participation would commence on the first day after the month of signature. Therefore, the third respondent ought to have been registered as a participating employer in the first respondent from 1 August 2012.

With regard to the payment of contributions to the fund that were deducted from the complainant’s salary, the third respondent had requested the electronic data template as well as banking details from the first respondent in order to register the complainant as a member, to no avail.

She said from the submissions received from the third respondent, it was clear that it was its intention to be registered as a participating employer in the first respondent and also to register the complainant as a member thereof.

"This it demonstrated by signing the agreement and deducting contributions from the complainant and requesting the necessary registration from the first respondent.

"However, the first respondent failed to provide it with the necessary information in order to be registered. Therefore, the complainant is entitled to a disability benefit.”

The first respondent was ordered to provide the third respondent with its banking details and electronic data template in order for it to transmit its contributions. The first respondent was ordered to register the third respondent.

The third respondent was ordered to register the complainant as a member of the first respondent from 1 August 2012 to 20 May 2013 and to submit contribution schedules to the first respondent for this period in order to facilitate the computation of the complainant’s benefit.

The third respondent was ordered to provide the first respondent with the necessary documentation in order to assess whether the complainant qualified for a disability benefit in terms of its rules.

If the complainant qualified for a disability benefit, then the first respondent was ordered to compute the complainant’s contributions owed by the third respondent.

The third respondent was ordered to pay the first respondent the complainant’s contributions as computed.

The first respondent was ordered to pay the complainant her disability benefit plus late payment interest.

If it was found that the complainant did not qualify for a disability benefit, then the first respondent was ordered to pay the complainant a withdrawal benefit.