Category Legal Affairs

A pension fund cannot challenge the Pension Fund Adjudicator’s section 37C decision

21 July 2021 Michelle David, Norton Rose Fulbright
Michelle David, Norton Rose Fulbright

Michelle David, Norton Rose Fulbright

A pension fund failed in its application for reconsideration of the Pension Fund Adjudicator’s (PFA) decision to refer the matter back to the fund for reconsideration because, according to the Financial Services Tribunal the fund is not a ‘person aggrieved’ as required by section 230 of the Financial Sector Regulation Act of 2017.

The fund made an allocation of benefits including the surviving wife of the deceased and an ex-wife and his three daughters of the first marriage under section 37C(1)(a).  The PFA set the allocation aside saying it should have been a decision under section 37C(1)(bA) and ordered the fund to reconsider and supply reasons for its new allocation.  The fund made same allocation under that section. The PFA disagreed and referred the matter back again to the fund to apply the PFA’s reasoning. The fund applied for reconsideration of that PFA decision.

The Tribunal held that the fund was not an aggrieved party and could not challenge the PFA’s decision.  The decision affects the Fund in that it would be required to reconsider the matter but it has no legal interest in the allocation.  The PFA was therefore required to decide whether the fund had exercised its decision properly and legally.  If not, the PFA had to exercise the discretion.

In the course of the decision the Tribunal said that it was inconceivable in a case such as this that all the identified dependants should not share in the benefit although the percentages were a matter for discretion to be exercised by the PFA.  The surviving wife wanted all the benefits.  Although the other beneficiaries were not dependant on the deceased at the time of his death they were struggling financially.  Even though the surviving wife was nominated as beneficiary that did not entitle her to all the benefits simply because of the nomination.  A discretion still has to be exercised by the fund; and now by the PFA.

Momentum Retirement Annuity Fund v Botha & others Case No PFA47/2021: 16 July 2021

First published by: Financial Institutions Legal Snapshot


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