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THE FINANCIAL SERVICES TRIBUNAL

 

CASE NO.: PFA47/2020

 

In the matter between:

 

K E SHABALALA                                                      APPLICANT

 

and

 

SUMOAH TRUCKING (PTY) LTD                            FIRST RESPONDENT

 

THE PENSION FUNDS ADJUDICATOR                  SECOND RESPONDENT

 

TRANSPORT SECTOR RETIREMENT FUND         THIRD RESPONDENT

 

SALT EMPLOYEE BENEFITS                                  FOURTH RESPONDENT

 

Application for reconsideration of a PFA determination – Labour Relations Act, 1997, sec 197

 

 

DECISION

 

 

[1]        The applicant, Mr Shabalala, filed a complaint with the Pension Funds Adjudicator against his erstwhile employer, the first respondent. The complaint was upheld in part and dismissed for the rest under sec 30M of the Pension Funds Act, 1956. The applicant applies in terms of sec 230 of the Financial Sector Regulation Act, 2017, for reconsideration of the dismissed part.

 

[2]        The parties have waived their right to a formal hearing and have agreed that the matter be decided on the papers filed.

 

[3]        If one ignores the irrelevant allegations made by the applicant or on his behalf by his para-legal representatives, and one overlooks that only legal practitioners may represent a party before this Tribunal, the case falls within a narrow compass.

 

[4]        The case of the applicant has changed since the determination, but he alleges that if he had been given the opportunity earlier to respond to the employer’s submissions, he would have made this new case earlier. It is unnecessary to enter a debate as to whether the PFA failed to follow the correct procedure.

 

[5]        The case of the applicant was that he was employed by the employer since 1 June 2012 and that he was retrenched on 27 January 2017. Since the employer was in the transport sector industry, the applicant had to be registered as a member of the Fund, which is administered by Salt, and contributions had to be paid by the employer of the Fund. However, when he sought payment of his withdrawal benefits, it became apparent that he was registered late and that contributions for the period April 2016 to January 2017 only had been paid and his withdrawal benefit was accordingly determined and paid.

 

[6]        The “evidence” before the PFA was that the applicant had been employed on 1 June 2012 by a firm, Tedcor Projects, that the employer company was only incorporated on 27 April 2014, and that the applicant was employed by the company as from January 2015. Based on those facts, the PFA concluded that since the company was only incorporated during 2014, the applicant could not have been employed by the company since 2012, as he alleged.

 

[7]        Because of this, the PFA ordered the registration of the applicant as member from January 2015, and the employer to pay the outstanding contributions for the period January 2015 to March 2016.

 

[8]        The applicant’s present response is that the incorporation of the company was merely a name change, which is incorrect. The fact that the owners of the firm are the shareholders of the company does not mean that incorporation amounted to a name change – it did not. And the motive of the owners to change from a firm to a company is legally irrelevant.

 

[9]        However, there appears to be sufficient material available for a conclusion the provisions of sec 197 of the Labour Relations Act, 1997, could apply to the move of the business from a firm to the company, which could mean that the employer was responsible for the failures of the firm to have registered the applicant as a member of the Fund during June 2012, and for the outstanding contributions prior to January 2015.

 

[10]     Order: The determination is set aside, and the matter is referred to the PFA for reconsideration.

 

 

Signed on behalf of the Tribunal on 1 December 2020

 

LTC Harms (deputy chair)

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